CHIRANJILAL RAM LAL Vs. TULSIRAM JANKIDASS

JUDGEMENT

(1.) This is an appeal from the judgment of my learned brother Mr. Justice Greaves and from an order made by him on the 7th day of July 1919.

(2.) The application was made by the defendant firm asking that a decree which had been made by the learned Judge in the suit on the 4th of Jane 1919 should be reviewed. The application was based upon the following ground, that the evidence of one Baldeo Sahay which was very relevant and most material could not be produced by the defendant firm after the exercise of due diligence at the time when the decree was passed. It was alleged that the defendants believed that the evidence of Baldeo Sahay was of such a character that if it had been given at the said hearing it might possibly have altered the judgment. The suit was brought by the plaintiff for a declaration that a certain contract was void, inoperative, unenforceable and of no effect, and that the defendants were not entitled to enforce the said contract or any rights thereunder. The allegation was that the contract in question had been made through the individual to whom I have referred, Baldeo Sahay. He was not called as a witness at the trial. The result of the trial was that the learned Judge held that the defendants did not discharge the onus which lay upon them of proving the contract. Consequently he gave judgment in favour of the plaintiffs and a decree was drawn up in accordance with the judgment. That was the decree which the defendant firm applied to have reviewed. The learned Judge granted a rule. The hearing of that Rule was on the 7th of July this year. The learned Judge delivered no judgment, but he said "I think I will hear his evidence." Then there was a discussion as to the date when the further hearing should be held. The learned Judge directed "Have it a fortnight hence." He then made the Rule absolute and ordered that costs should be costs in the cause. The result of making the Rule absolute was that the decree which had been drawn up in pursuance of his judgment was set aside. The order drawn up was as follows: It is ordered that this suit be placed on the peremptory list of suits for hearing after a fortnight from the date hereof for re trial for hearing the evidence of Baldeo Das as a witness on behalf of the defendant firm. The costs of that application and the order nisi were directed to be costs in the cause.

(3.) The learned Counsel for the appellant has urged that the order of review which the learned Judge made is appealable, because he argued that the order granting the review was in contravention of the provisions of rule 4, Order XLVII, of the Civil Procedure Code and if the learned Counsel is right in that contention, then it is clear that an appeal lies, because such an appeal is expressly given by Order XLVII, rule 7 of which is as follows: (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was--(a) in contravention of the provisions of rule 2, (6) in contravention of the provisions of rule 4.... Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit." Rule 4, Sub-rule (2) is as follows: Where the Court is of opinion that the application for review should be granted, it shall grant the same: Provided that...(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, with-out strict proof of such allegation." In order to see what is meant by "discovery of new matter or evidence" mentioned in this rule, reference must be made to rule 1 of Order XLVII which is the rule giving a right to the person aggrieved to apply for a review. That rule provides as follows: "Any person considering himself aggrieved, (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or (6) by a decree or order from which no appeal is allowed, or (c) by a decision on a referenda from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.